Frank DeOrio knows a lot about protecting drinking water. For more than 25 years, Frank was Director of Utilities for the City of Auburn located in the pristine Finger Lakes region of Upstate New York. He was responsible for the water supply drawn from Owasco Lake and the protection of the lake’s watershed. During Frank’s tenure, the City won awards for the best water in the state and the U.S.

Frank and I recently discussed his concerns about the potential impacts to drinking water from summer algal blooms in our region’s lakes. Algal blooms can occur when spring rains flush nutrients, for example, phosphorous, into waterbodies. Summer temperatures raise water temperatures, creating optimum growth conditions.

Owasco Lake, September 18, 2017

Summer algal blooms now occur in more lakes, their duration has increased, and they are producing toxins that pose health risks to the public when ingested or during recreational contact. These toxins are not easily treated by water suppliers because the technology to treat one toxin may not be effective for another. And unlike bacteria, boiling water does not remove these toxins.

In 2017, harmful algal blooms (HAB) occurred in all 11 of the Finger Lakes, reportedly for the first time. Blue-green algae are cyanobacteria and they can produce several species of cyanotoxins. What is disturbing about the recent HAB outbreaks is that some classes of these cyanotoxins (e.g., microcystins), are particularly toxic. If present at high concentrations, they can be difficult or impossible to treat using the technology of most public water systems. One of these is Microcystin-LR, a liver toxin that is considered one of the more toxic. These toxins can also cause skin, digestive system and other health issues.

Mycrocystin-LR has been identified in raw water drawn from Owasco Lake and Skaneateles Lake, both jewels of the Finger Lakes. And Owasco Lake provides drinking water to more than 50,000 customers. In 2016, the City of Auburn was using filtration to treat its raw water. When the level of Mycrocystin-LR increased, the City considered moving the location of its water intake away from the area of the lake containing the toxin. But would the new intake remain safe if the toxin shifted location? The City decided against moving the intake and instead added carbon filtration.

Skaneateles Lake is the primary water supply for the City of Syracuse and surrounding communities. The water authority operates under a “filtration avoidance” authorization. After a severe storm on July 1, 2017, phosphorous levels in the lake rose, resulting in algal blooms, and Microsystin-LR was then detected in the raw water pumped from the lake. The levels were low enough that treatment was not required and the toxin was not identified in the water that reached customers. Nonetheless, the presence of this toxin in the raw water is a disturbing development.

These examples are lakes in my area. But similar algae toxins and blooms are occurring in New England states, including New Hampshire and Maine.

The broader challenges? The science around algae toxins is emerging. Further, there are no federal or state drinking water standards for microcystins (though there are health advisory guidelines published by USEPA and some states). Water treatment plants are generally designed to avoid taste and odor concerns and to manage the most commonly tested algae toxins. The next generation of plants will need to have more flexible designs to accommodate advanced treatment technologies. And water authorities will need to consider spatial needs, hydraulics, connections, utilities and process control for these technologies.

Frank’s concerned. So am I. It may get worse before it gets better. While we wait for science, regulatory efforts and focused treatment technology to develop, at least municipalities can take steps to control the potential for toxic algal blooms by a combination of runoff control, nutrient reduction and stream-bank restoration. Why wait to build that bridge from troubled waters to cleaner lakes?

The Washington Post reported last week that Utqiagvik, Alaska (formerly known as Barrow), has gotten so warm, so fast, that NOAA’s computers can’t even believe it. The data for Utqiagvik (that’s hard to type!) were so high that the computers determined it must be anomalous and pulled all of the data from Utqiagvik from the NOAA monthly climate report. Only when scientists realized that Utqiagvik was completely missing from the report did they notice what had happened.

How hot does it have to get to get bounced by the computer? How about average October temperatures 7.8 degrees warmer than in 2000? Average November temperatures 6.9 degrees warmer than in 2000? Likely culprit? Melting sea ice means that less sunlight is reflected. That’s one nasty negative feedback loop.

In the meantime, as I noted in October, Alaska Governor Bill Walker has concluded that Alaska needs more oil drilling (can you say “Open ANWR” three times fast?) in order to pay for climate change mitigation. It’s apparent that Governor Walker has not read Faust.

While some still debate climate change, on 11/22/17, eight of the oil and gas industry’s biggest players signed on to a set of Guiding Principles for reducing methane emissions across the natural gas value chain. BP, Eni, Exxon Mobil, Repsol, Shell, Statoil, Total and Wintershall, in collaboration with international institutions, NGOs and academics, drafted the Guiding Principles.

It will be interesting to see if these “voluntary principles” eventually become enforceable regulations. Likewise, it will be interesting to see if these guidelines become “industry standards” and, accordingly, whether by acquiescence, private litigation, or lender requirements, become de facto regulations.

Time will tell.

It is significant to see so many major oil and gas industry actors responsibly, firmly and publicly commit to both reduce methane emissions and advance monitoring. Perhaps now others in the industry will be more inclined to join the responsible eight and commit to pass less gas.

Earlier this week, eight states in the Transportation Climate Initiativeissued a joint statement pledging to pursue regional solutions to GHG emissions from transportation. The statement does not identify any specific policy options; instead it simply announced that they are “initiating a public conversation about these opportunities and challenges.”

Even if the statement doesn’t say so, what everyone is hearing from this announcement is simply this: RGGI for transportation.

To give one an idea of the momentum that is finally building in support of regulation of transportation sector GHG emissions, one need look no further than the recent letter sent jointly by the New England Power Generators Association (our client), the NRDC, the Sierra Club, the Union of Concerned Scientists (also our client!), and the Acadia Center to four New England governors, requesting that they

"develop and participate in a regional, market-based policy to address greenhouse gas emissions from the transportation sector."

If the letter seems at first blush to involve strange bedfellows, think again. From NEPGA’s perspective, its members are reasonably sick and tired of being the only target of GHG emissions regulations – particularly given that electric generation now represents less than ½ the GHG emissions from transportation. From the perspective of the environmental groups, they know that it will be literally impossible to meet targets of 80% reductions in GHG emissions by 2050 without very substantial reductions in emissions from transportation.

For too long, states focused on electric generation emissions to the exclusion of transportation for one reason only. Transportation will be difficult. Difficult is no longer an excuse.

Last month, Magistrate Judge Elizabeth Laporte granted summary judgment to plaintiffs and vacated the Bureau of Land Management’s notice that it was postponing certain compliance dates contained in the Obama BLM rule governing methane emissions on federal lands. If you’re a DOJ lawyer, it’s pretty clear your case is a dog when the Court enters summary judgment against you before you’ve even answered the complaint.

The case is pretty simple and the outcome should not be a surprise. BLM based its postponement of the compliance deadlines on § 705 of the APA, which authorizes agencies to “postpone the effective date” of regulations “when justice so requires.” However, every court that has looked at the issue has concluded that the plain words of the APA apply only to the “effective date” of a regulation and not to any “compliance date” contained within the regulation.

It seems clearly right to me. For Chevron geeks out there, I’ll note that the Court stated that, because the APA is a procedural statute as to which BLM has no particular expertise, its interpretation of the APA is not entitled to Chevron deference – a conclusion which also seems right to me.

What particularly caught my eye about the decision was the Court’s discussion of the phrase, “when justice so requires.” In a belt and suspenders bit of analysis, the Court also made findings that justice did not require postponement. BLM’s argument was that justice required the postponement because otherwise the regulated community would have to incur compliance costs. However, as the Court noted, “the Bureau entirely failed to consider the benefits of the Rule, such as decreased resource waste, air pollution, and enhanced public revenues.” Indeed:

If the words “justice so requires” are to mean anything, they must satisfy the fundamental understanding of justice: that it requires an impartial look at the balance struck between the two sides of the scale, as the iconic statue of the blindfolded goddess of justice holding the scales aloft depicts. Merely to look at only one side of the scales, whether solely the costs or solely the benefits, flunks this basic requirement. As the Supreme Court squarely held, an agency cannot ignore “an important aspect of the problem.” Without considering both the costs and the benefits of postponement of the compliance dates, the Bureau’s decision failed to take this “important aspect” of the problem into account and was therefore arbitrary.

I think I detect a theme here. Some of you will remember that Foley Hoag filed an amicus brief on behalf of the Union of Concerned Scientists, supporting the challenge to President Trump’s “2-for-1” Executive Order. We made pretty much the same arguments in that case that Magistrate Judge Laporte made here – minus the reference to the scales of justice.

Unless SCOTUS gets rid of all agency deference, the Trump Administration is going to get some deference as it tries to eliminate environmental regulations wherever it can find them. However, if it continues to do so while looking solely at the costs of the regulations to the business community, while ignoring the benefits of the regulations, it’s still going to have an uphill battle on its hands.

Following the punishing hurricanes in the gulf coast and island regions of the United States, concern immediately turned to the environmental impacts of toxic releases from damaged chemical facilities. EPA reports that 13 of the 41 Superfund sites in the area were flooded by Hurricane Harvey. High winds and rain damaged the protective cap at the San Jacinto River Waste Pits, risking the escape of dioxin contaminated sediments, and EPA ordered the responsible companies to take immediate action. Even without an order, facility owners will often act as quickly as possible to contain any spills and mitigate their impacts.

But as a matter of law, would there be a basis to defend against the EPA order or claims for response costs by asserting the Act of God defense? CERCLA and the Oil Pollution Act both provide a complete defense to liability if the party can show that the release of hazardous substances (or petroleum under the OPA) was caused solely by an act of God. The defense is severely limited by the requirement that a natural disaster must be “unanticipated” and an “exceptional” event. For example, CERCLA’s legislative history says a major hurricane may be an act of God, but may not qualify as unanticipated or exceptional in an area where hurricanes are common. Reportedly there are no cases where the defense has been successfully raised.

A superstorm such as Hurricane Harvey may present a more compelling case for this defense. While hurricanes are expected in the area, an event that unleashed an estimated 19 trillion gallons of water can be considered exceptional and arguably unforeseeable, even with the recent history of other superstorms (e.g., Sandy, Katrina). Successfully asserting the defense will likely depend upon expert testimony showing the facility implemented enhanced protective measures before the storm, probably true for most major industrial facilities in the affected area, and that exceptional circumstances overwhelmed those measures, which circumstances could not have been anticipated or prevented even by the exercise of due care or foresight.

Comparing the precautions taken by other similarly situated facilities will also be important to establish the standard of care. For example, the Texas environmental agencies worked with chemical facilities before the storm to protect hazardous waste containers from damage and flooding, and any facility asserting the defense will likely need to have undertaken similar precautions to have any chance of success. For a toxic tort case, there is no statutory Act of God defense, but the same types of arguments will be used to show the facility exercised due care and reasonable foresight in taking protective measures. These issues will also be presented in insurance claims and litigation regarding coverage disputes.

The defense however has an additional requirement, that the Act of God not be the result of human action, such as from greenhouse gas emissions. While the relationship between climate change and these superstorms may not be known until years of further study, there is preliminary evidence that global warming made the storms worse by increasing ocean temperatures and raising the sea level, intensifying the impacts of its wind speed, rainfall and storm surges.

So the Act of God defense may become impossible to win for a superstorm if man-made contributions were a factor – but is this meaningful? The defense has never been successfully asserted in any event. But if an alternative causation for a superstorm can be proven by a preponderance of the evidence, there is a potential basis for the responsible party under CERCLA or a tort theory to seek contribution or otherwise allocate a proportionate share of liability to others. And the large number of “other” potential defendants who contributed to global warming will raise difficult issues of justiciablity. The recent superstorms may produce a test case with the right combination of circumstances to squarely present these issues to a court.

That is, while not a complete defense, climate change may provide new theories for defendants. When a door closes, a window may blow open.

There’s nothing like a good catastrophe to make your typical disaster planning look bad.

You hear the word “unprecedented” a lot in Houston these days. Hurricane Harvey brought an astonishing 50.1 inches of rain to the Houston region over three days, which means the storm effectively provided our entire annual rainfall within the space of three weeks. The deluge damaged 195,714 homes in Texas, forced over 7,500 Texans into emergency shelters, shut down power and transportation to thousands more, and triggered hundreds of inspiring do-it-yourself rescue missions as flooded neighbors helped each other when official high water rescue teams faced impossible demands.

The environmental cost was, also, “unprecedented.” Even Tropical Storm Allison and Hurricane Ike did not cause the scale of refinery shutdowns, upset emissions, wastewater treatment system disruption, and chemical plant incidents (including spectacular explosions and fires at the Arkema chemical plant) that we saw in the greater Houston region during Harvey. At least 13 CERCLA sites in the greater Houston area flooded, and EPA was unable to even access numerous sites for over a week to assess any damages or identify any releases.

“Unprecedented,” however, has a different connotation when viewed through a legal lens. The post-Harvey environmental liability battles have only just begun, and they promise to raise a broad array of challenging legal issues. The flooding damage lawsuits alone (including takings claims against the U.S. Army Corps of Engineers) are multiplying fast. In particular, EPA has already contacted PRPs at some flooded CERCLA sites to demand that they respond to hazardous substance releases – which might have some ACOEL members closely scrutinizing the model reopener provisions and the scope of covenants not to sue in their clients’ consent decrees. The Act of God defense will likely get a fresh re-examination, including arguments about how to apply it when hurricanes – even massive ones - are not exactly a surprise in the Gulf Coast region. And fires, explosions, and discharges at facilities could turn a spotlight onto the scope of the general duty clause under Section 112r of the Clean Air Act and the legal penalties for inaccurate or delayed initial release reports under CERCLA and other statutes.

In the long run, Texas and Houston – and other coastal states, counties, cities and towns– will need to revise their disaster frameworks to anticipate and account for Harvey-type storms into the future. These storms are no longer, unfortunately, “unprecedented,” and the standard terms of consent decrees and agreed orders on liability for secondary releases from post-remediation incidents will need a lot more scrutiny than they’ve typically received.

The award-winning 1940 movie Fantasia includes a segment with a bevy of hippopotami in tutus preforming the Dance of the Hours. It is a remarkable depiction of an alternate reality in which the law of gravity doesn’t seem to apply. The 2017 version of an alternate reality is the Trump Administration’s perspective on climate change. Like the hippos in Fantasia, Messrs. Trump and Pruitt and other Administration officials are trying to ignore inexorable laws of nature and human behavior. Unlike the hippos, they will not succeed (reserving judgment on whether they will look as nice in their tutus).

In June, Mr. Trump announced the withdrawal of the U.S. from the Paris Agreement, claiming that it was a ”bad deal” that would “kill American jobs.” With Nicaragua belatedly deciding to sign on to the Agreement, the only two countries left that are not participating in the Agreement are the U.S. and Syria. (Nicaragua, by the way, initially refused to sign the Agreement, not because it thought the Agreement was too stringent, but rather that it wasn’t stringent enough.)

Meanwhile, Category 5 hurricanes march through the Gulf of Mexico and the Caribbean, epic droughts wither the Pacific Coast, sea lanes in the Arctic are open for the first time in recorded memory, and entire islands disappear beneath rising seas. The human cost of these and other climate-related events is immense.

The preamble to the Paris Agreement identifies the following climate-vulnerable areas of society:

· Poverty-stricken populations

· Food security

· Quantity and quality of jobs

· Human rights

· Health

· Indigenous peoples

· Local communities

· Migrants

· Children

· Gender Equality

· Empowerment of women

· Intergenerational equity

· Ecosystem integrity

· Justice

The rejection of the Agreement by the Trump Administration represents a denial of the broad impact of climate change on society as articulated in the Agreement. Like the hippos in the dance, the Administration wants to live in a world in which the laws of nature don’t apply. But real-world hippos and the rest of the inhabitants of the planet (including all of us and our children and grandchildren) will suffer the consequences of their denial of reality.

Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns. For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities. Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place. They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces. Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”), and a range of industrial facilities which are associated with adverse health impacts. Hurricanes, tornadoes, and other extreme weather events may cause catastrophic damage and failures of routine safety systems, resulting in unexpected and uncontrolled releases of dangerous chemicals that impose particular risks on neighboring “EJ communities.”

In the early days of the EJ movement, attention and energy was focused primarily on questions of equity with respect to facility siting and the permitting of new LULUs in close proximity to already overburdened neighborhoods populated by EJ communities. For many years now, concerns about the inequitable distribution of environmental burdens have been used to rally opposition to the siting and permitting of new LULUs that would likely increase existing environmental risks. Naturally, this approach has tended to focus attention on the adverse health impacts associated with long-term exposures to the environmental contaminants that proposed new facilities would or could release to air, soil and water in the course of their routine operations.

Increasingly, however, the most serious environmental risks facing EJ communities – especially in or near industrialized urban waterfront zones – are those associated with the catastrophic weather-related impacts of climate change on existing facilities and established infrastructure. It is doubtful that the existing paradigms for thinking about environmental justice have grasped and evolved to account for this fundamental fact as quickly or as fully as they should and must.

At the state level, approaches to EJ vary considerably. Some states, like California, were early adopters of legislation that codified EJ and have established EJ programs with responsibility vested in a coordinating body and various required legal processes. Other states, like Massachusetts, have executive orders and state policies aimed at proactively integrating EJ considerations into the decision-making of environmental and energy agencies, and perhaps an occasional statutory nod in the direction of EJ. Some have programs (e.g., the Texas Environmental Equity Program) or study centers (e.g., the Center for Environmental Equity and Justice at Florida Agricultural and Mechanical University) that pertain to environmental equity but do not explicitly compel the government to go beyond the avoidance of invidious discrimination. In general, it remains the case that EJ laws, policies and programs have tended not to focus a great deal of attention on climate change impacts. That is, they have not tackled with sufficient rigor and depth the unfortunate synergies that occur when the worst effects of climate change are felt by the most vulnerable EJ communities. This is beginning to change, but the change cannot come too quickly.

By way of example, Massachusetts’ original EJ policy, which was issued in 2002, focused primarily on the equitable protection of parks and open space, on brownfields redevelopment, on fairness in environmental grant-making, and on procedural protections aimed at enhancing the ability of all to have a voice in environmental decision-making. Its scope was limited to environmental agencies, and it contained no mention of climate change. Today, the updated Massachusetts EJ policy (revised as of January 31, 2017) applies to energy as well as environmental agencies, and it expressly affirms the need to enhance meaningful participation by traditionally underserved and under-represented EJ communities in climate change decision-making, as well as in energy and environmental decision-making. In addition, the updated Massachusetts EJ policy expressly points to the need to ensure that all residents “are prepared for and resilient to the effects of climate change.” This link between climate change and EJ is also now reflected in the Massachusetts Climate Protection and Green Economy Act, codified at G.L. c. 21N. Specifically, § 5 of that statute expressly requires the Secretary of Energy and Environmental Affairs to determine “whether activities undertaken to comply with state regulations and efforts disproportionately impact low-income communities.”

The importance of strengthening the developing linkage of climate change to EJ concerns cannot be overstated. The most pressing EJ problems today go far beyond matters of equity with respect to parklands, brownfields, grants, and opportunities for participation in environmental decision-making. The most urgent current EJ needs include planning and providing for robust, effective, fair responses to the environmental disasters associated with climate change, as they affect vulnerable low-income, minority, non-native English-speaking communities. States, counties, and municipalities will need to step up and provide the necessary leadership to address these needs. This will require creating, strengthening, and fulfilling the promise of state and local EJ laws, policies, and programs, so as to address the current gaps in our legal system that all too often leave the most vulnerable among us “up the creek without a canoe paddle” in the wake of an environmental disaster. As we face the future, whether and how we will choose to involve, consider, and respond to those who are at the greatest risk of being the most severely victimized, at the intersection of climate change and environmental justice, will be a test of our collective will and values.

(With apologies to the late Timothy Leary [“Turn on, tune in, drop out”], who was referring to Electric Kool-Aid, not Electric Vehicles.)

Today, September 18th, is the second anniversary of the first public disclosure of the VW “Defeat Device” scandal. It also marks the beginning of the end of sales of diesel-powered VW cars in the U.S. And while other companies (Chevy, BMW, Jaguar and Land Rover, among them) still offer diesel cars and SUVs, the pickings are a lot slimmer.

One unintended consequence of diesel’s fall from grace is the boost it has provided to electric vehicles. Auto manufacturers must find ways to meet increasingly stringent fuel-economy standards, and for some the efficient diesel was a way to hike their “CAFE” (corporate average fuel economy) numbers. Now, signs are that Tesla, even with the introduction of its less-expensive Model 3, will soon be sharing the EV market with a growing number of competitors. GM and Nissan are expanding their pure EV offerings, and Volvo, Mercedes and Mini are planning to release their own “zero emission vehicles” (ZEVs) over the coming years. Meantime, plug-in electric/gasoline hybrids are becoming common-place, with offerings from Toyota, Cadillac, Volvo, Ford, BMW, and others.

While diesels dominate the line-haul truck market, Cummins and Tesla are both planning to introduce short-haul electric heavy trucks in the near future. And what could be more telling than the announcement by the quintessential American company, Harley-Davidson, that it will start selling its “Livewire” electric motorcycle in five years? Will “Rolling Thunder” become an anachronism?

International pressure to reduce GHGs and urban air pollution is also at play. China, India, England, France and Norway are all considering an outright ban on the sale of fossil-fueled vehicles. And back to VW, as part of its Defeat Device settlement, the company agreed to spend $2 billion over the next 10 years on U.S. infrastructure to support electric vehicles.

Battery prices are coming down and charge stations are going up. And sure, diesels have great torque, but as anyone who has experienced the head-banging g-force of mashing the pedal in an EV will tell you, diesels are best viewed in the rear-view mirror.

Still, many institutional and social barriers remain – proprietary charging technologies, reliance on government subsidies, high costs of electricity with (in some areas) no reduction in nighttime rates, and consumers who are wary of the emerging technology and fear being stranded on the highway with a depleted battery. But while ZEVs and plug-in hybrids are still a fraction of total vehicles sales, they are increasing in numbers and market share. As prices drop and driving range increases, electric vehicles will become more affordable and practical.

As noted in yesterday’s post, David Farer and I recently went to Cuba as delegates to the XI International Convention on Environment & Development, specifically, the Congress of Policy, Law and Environmental Justice. At the conference, on behalf of ACOEL, we presented our paper, “Lessons Learned: Effective Environmental Regulation of Critical Infrastructure Development & Operation.” Let me share some of the “flavor” of our experience. It is first worth noting that little English was spoken at this quite international conference, but participants got by with assistance by Google Translate. Also worth noting is that many of the conference participants are familiar to us all. For example, those with exhibition booths at the conference included the Environmental Defense Fund, which has made considerable efforts to protect Cuban fisheries; and the Harte Research Institute for Gulf of Mexico Studies, Texas A&M Corpus Christi, which is working closely with the Cuban Environmental Agency on research in the Gulf of Mexico. Also exhibiting were Cuban administrative and educational entities, such as the Nuclear Agency and the Institutes of Geology and Paleontology, Physics and Astronomy, Ecology, Science, Sea and Climate, and Meteorology, as well as several entities focusing on sustainability, local food, and climate change adaptation and environmental protection.

Fellow speakers included environmental and energy professionals from the United States, Canada, and Mexico, as well as Columbia, Costa Rica, Brazil, Peru, Chile and Spain. Topics ranged broadly from cultural heritage to mining law; the impact of climate change on urban agriculture; perspectives of ecofeminists; sustainability in urban areas; limits of rights, policy and environmental management; resolving water disputes; methods to establish legally protected areas, particularly coastlines; and approaches to protecting drinking water and defining solid waste for community waste management. Of particular interest to U.S. environmental practitioners were Cuban presentations on improving the regulation of environmentally responsible businesses, the test for environmental damage and its main problems, and approaches to a law of liability to resolve civil damages. Toward the end of the Congress, attendees were invited to the Cuban Bar Association to participate in an analysis and discussion regarding foreign investment and the environment.

The Congress ended with a presentation of the 2017 book: “Environmental Act, Twenty Years Later,” edited by Teresa D. Cruz and Orlando Rey. This 120 page book reviews, in Spanish of course, the history of Cuba’s first framework environmental law of 1997: Law No. 81, the Environmental Law. The story behind Law No. 81 –including information on Cuba’s rich biological diversity, the country’s depth in science and education, and the fact that the law was supported by Fidel Castro – are the subject of Oliver Houck’s excellent article, Environmental Law in Cuba, J. Land Use & Envtl. L. (Fall 2000). Those appreciating Professor Houck’s description of the hard road Cuba traveled to recover its original astonishing beauty after tripping along a precipice of potential environmental ruin would have appreciated the XI International Convention and the passionate arguments by presenters. They should also appreciate the new book commemorating Cuba’s environmental passage.

We are looking forward to ACOEL’s next steps toward pro bono projects with Cuba.

Hurricane Irma Note: As of the date of this posting, the Cuban people – like so many others in the Caribbean and our own country -- are facing a long and difficult road to recovery from the hurricane’s devastation. We hope that the College’s efforts can aid in this process.

One of the great things about the ACOEL is that its members are very diverse in their views on politics and policy. On the subject of reactions to President Trump's environmental policies, we have a spectrum ranging from outraged to jubilant. Count me at the outraged end. I would welcome counter-thoughts from the other end of the spectrum.

With that disclaimer, here are my personal views.

This is a time of unprecedented peril to U.S. environmental law. What can those of us environmental lawyers who are outraged do about this?

Obviously, each individual’s flexibility depends in large part on where we work – we academics have almost complete flexibility, as do lawyers in their own small firms; lawyers in NGOs quite a bit; lawyers in big law firms have significant constraints; and lawyers in government are the most tightly constrained.

But to the extent people do have flexibility, these are eight things we can do.

1. Push back

Resist these efforts by Trump, Scott Pruitt, Ryan Zinke and the rest. That may involve speaking out; suing or intervening or joining as amici in others’ lawsuits; or filing comments when the opportunity arises. We need to try to preserve the gains that were made in prior administrations to the extent possible. Some day – though not soon enough -- we’ll have a new President who actually believes in law and science and cares about current and future generations, and when that day comes we’ll want to get back on track as quickly as possible.

2. Think globally, act locally

Much of the most important action for the rest of the Trump era will be at the state and the city levels. I’m fortunate to be in a state and a city where there is overwhelming consensus on the importance of environmental protection, and we have leaders who want to move forward – maybe not always as far and fast as we would like, but generally in the right direction. So those who are in state or city government, or who work closely with those who do, have special opportunities to devise and deploy tools that can work where you are and can serve as a model for elsewhere.

3. Decarbonize

To avoid the worst impacts of climate change we need to move away from fossil fuels and toward a clean energy economy that is centered around renewables like wind, solar and hydro, and that operates with the greatest possible degree of energy efficiency. The plummeting costs of wind and solar, in particular, mean we are in the midst of a very positive energy revolution in which renewables push out fossil. Lawyers are needed to help acquire the permits, real estate, and financing for the many new clean energy facilities and devices.

4. Adapt

The outlook for future climate change is extremely serious and seems to be getting worse. Sea level rise, melting ice, episodes of extreme heat, drought and precipitation, and other projections are no less than scary. We need to build resilience into construction projects, natural resource management, and all manner of other activities. This can happen through zoning actions, licensing and rate proceedings, environmental impact review, and many other settings where lawyers are central players. We should do this both because we need our projects and activities to be resilient, and because if the leaders of large enterprises are led to recognize the impact that climate change may have on their own organizations, ultimately this should have a political impact.

5. Do no harm

If you can, avoid representing the NIMBY side in litigation against renewable energy projects.

In law firms -- If you possibly can, stay away from matters where you’ll be litigating on the side of Trump’s environmental deregulation campaign.

And to our friends who work at EPA, Interior, DOJ and other federal agencies -- you are in our hopes and prayers, we’re thinking of you all the time, we admire your perseverance, and to the extent we possibly can, we have your backs.

6. Reduce personal environmental footprint

Each of us can do more to lower our own environmental impact. This can mean, for example, replacing incandescent light bulbs with LEDs; insulating our homes; driving less and walking, biking, or taking mass transit more; driving electric, hybrid, or small efficient cars; eating less meat (especially beef); diligently turning off lights and appliances and closing faucets; flying less; and recycling more.

7. Contribute

Even if we can’t litigate or campaign directly, we can contribute money to those who do. NGOs that are on the front lines of litigation, lawful activism and needed research, political action groups that work for pro-environmental candidates, and such candidates themselves are all worthy of support.

8. Vote

Finally, there is no excuse for U.S. citizens not to vote at every opportunity, and those who can should work hard to try to persuade others to vote, and to cast those votes for an environmentally positive future.

If you do as many of these things as you can, you’ll have done your part in helping the planet through this awful Trump era, and hopefully into an area where we can all smile a lot more.

Proposals to adopt a fee on emissions of greenhouse gases (also called "Carbon Taxes") have made headlines, with both "conservative Republicans" and "liberal Democrats" releasing ideas. An elevated price on carbon -- the centerpiece of the suggestions for a federal program from both camps -- is not predicted to lower emissions, except by setting a very high price. Such an approach is not practical, unless room is allowed for states to continue their innovations and for volunteers to also reduce emissions. Getting the best result for the least cost - i.e. the most efficient emission reduction -- ought to be used.

EPA already has its Mandatory Reporting Rule. It does not cover non-obvious sectors like farming who could be affected by the proposed fee. The MRR reports provide a sound basis for any further federal program such as carbon fees.

Carbon taxes have yet to show direct evidence of any reductions in emissions of carbon equivalent greenhouse gases. As another cost which can be passed on in many sectors, it is a clumsy way to achieve environmental benefits.

However, if a "fee" is imposed, it should recognize state programs such as the ARB and RGGI programs. Those allowances ought to be counted and credited -- "a tonne is a tonne is a tonne" regardless of where emitted into the troposphere.

Voluntary reductions from non-regulated sectors ought to count too. Known as carbon offsets, they are issued by the several independent registries and have real environmental benefits and integrity. They are at least as real as monitored -- or more often estimated --emissions from AP-42 or other EPA-sanctioned sources. Offsets can only be recognized: (1) for reductions which are not required by law and not business as usual; (2) if based on a scientific methodology to measure such which has been accepted after public comment and peer review, (3) from a project has been announced, undertaken and proven to have occurred. Only after all such has been proven, is a credit awarded and available to be purchased and (4) then the offset credit must be chosen (i.e. purchased) for use by a regulated entity. Thus, there are several steps at which such are scrutinized by independent parties.

The proposals for carbon taxes are well-intentioned. But the most efficient and least disruptive approach would include not only recognizing state programs but also unlimited carbon offsets from economic sectors not under the tax. All businesses should have a role; those who are more efficient in producing their products for lower climate impact ought to have a way to contribute.

President Donald Trump’s decision to back away from the Obama Administration’s Clean Power Plan and other policies to reduce U.S. greenhouse gas (GHG) emissions in fulfillment of America’s commitment to the 2015 Paris Climate Change Agreement might be seen as bad news for the global environment. And it is. But the news is not quite as bad as many fear. Even if the President’s actions slow progress toward the U.S. “nationally determined contribution” to the emissions reduction goals of the Paris Agreement – a cut of 26-28 percent by 2030 – that will not stop the overall downward trend in GHG emissions for several important reasons.

First, American Presidents have limited executive authority, meaning that a number of the climate change policies put in place by President Obama cannot be reversed with a stroke of President Trump’s pen. Second, the shift away from coal as America’s electricity generation fuel of choice will continue – driven by prior regulatory requirements and the economics of the energy marketplace. Third, many critical decisions that shape the carbon footprint of a society are made not by presidents and prime ministers but by mayors, governors (or other sub-national elected officials), and corporate leaders.

President Trump’s March 28 Executive Order directs his EPA Administrator to “review” the prior administration’s Clean Power Plan and “as soon as practicable, suspend, revise, or rescind” it. But this is not a simple process. The Clean Power Plan represents a regulatory strategy for implementing a Clean Air Act obligation to control emissions from any air pollutant found to “endanger public health and public welfare.” The Supreme Court confirmed in Massachusetts v. EPA (2007) that this obligation is not discretionary with regard to greenhouse gas emissions.

Thus, the Trump EPA can change the strategy for responding to greenhouse gases but cannot walk away from its obligation to control them unless it reverses the “endangerment” finding issued by former EPA Administrator Lisa Jackson in 2009. To undo this prior conclusion, current EPA Administrator Scott Pruitt would need to establish a new scientific foundation that would justify a different policy conclusion. Given the overwhelming scientific consensus that the build-up of greenhouse gas emissions in the atmosphere threatens to produce various harmful effects – including sea level rise, increased frequency and intensity of hurricanes and other windstorms, changed rainfall patterns, as well as more frequent droughts, floods, and forest fires – such an effort would be quickly challenged in any number of courts and almost certainly overturned. Indeed, in the face of overwhelming scientific evidence that the build-up of GHG emissions in the atmosphere is a problem, a “non-endangerment” conclusion would be an almost paradigmatic example of an “arbitrary and capricious” regulatory action. EPA will, therefore, almost certainly choose to revise the Clean Power Plan rather than dump it altogether.

In introducing his climate change executive order, President Trump promised that his actions would bring back American coal production and power generation. No such thing will happen. Hundreds of U.S. coal-fired power plants have been shut down in the past decade – most in response to the Obama Administration’s Mercury and Air Toxics Standards. These plants will not be reopening.

Not only have coal-burning power plants been the target of numerous regulatory restrictions, they also now face stiff competition from cleaner-burning and cheaper natural gas power generation as well as rapidly expanding renewable power production. Nothing President Trump has done will reverse these trends. Indeed, given the momentum toward a clean energy future and the prospects that a future president will redirect the Trump climate change policies and restore the U.S. commitment to lower greenhouse gas emissions, no utility is going to invest in new coal-fired power plants, and many power generators will proceed with planned retirements of existing coal units. Simply put, the President’s shifting of gears on climate change policy does not over-ride the broader economic logic for movement toward cleaner and cheaper energy options.

In the face of the President’s disinterest in the Paris Agreement in particular and his hostility toward environmental regulation more broadly, leadership and political support for climate change action in the United States has shifted out of Washington. Of particular note, more than 200 mayors, 10 governors, and nearly 1700 business leaders have formed a coalition called America’s Pledge that aims to ensure that the U.S. emissions reduction commitment is fulfilled. Led by California Governor Jerry Brown and former New York Mayor Michael Bloomberg, the participants in America’s Pledge are pushing forward with climate action plans at the city, state, and corporate scales.

Some of these leaders, moreover, have expressed interest in formally “signing” the 2015 Paris Agreement if the United States ends up withdrawing. While there are constitutional limits to what sub-national jurisdictions can do in the international realm, legal work is underway to find a mechanism that would allow these mayors, governors, and CEOs to make a commitment to the goals of the Paris Agreement “to the full extent of their authority.”

The breadth and depth of these non-federal-government climate change initiatives means that American greenhouse gas emissions will continue to decrease regardless of what energy policies the Trump Administration puts forward. In fact, one of the critical features of the climate change strategy that the world community agreed upon in Paris in 2015 was a shift from a top-down approach that relied upon national government actions to a bottom-up game plan for emissions reductions that called upon a much wider array of actors to join the effort to promote energy efficiency and a shift toward renewable power.

As it turns out, presidents and prime ministers don’t have that much say over the day-to-day decisions that determine the carbon footprints of their societies. Mayors, governors, and CEOs are really the ones who make the critical choices about transportation options, housing and development patterns, product and production strategies, technology and infrastructure investments, and other decisions that determine the trajectory of greenhouse gas emissions.

Thus, while President Trump can take the United States out of a leadership role in the global effort to combat climate change, he will not be able to reverse the domestic momentum for action on climate change. His policies may slow the pace of U.S. emissions reductions, but movement toward a decarbonized energy future will continue.

Reuters reports that EPA Administrator Scott Pruitt, responding to a suggestion in a Wall Street Journal editorial, is planning to set up a “red team/blue team” war-game style debate to resolve the question in his mind about the validity of scientific predictions of catastrophic anthropogenic global warming. According to Administrator Pruitt, this “debate” would be televised. Pruitt said that this debate was “not necessarily” meant to undermine EPA’s 2009 Endangerment Finding that triggers Clean Air Act regulation of greenhouse gases, and added that he would prefer that Congress weigh in on the matter.

The prospect of a reality television show style competition designed to resolve for the United States a matter of scientific consensus reached by just about every other nation in the world should concern anyone hoping that EPA’s initial moves to regulate greenhouse gases might survive the Trump administration. But this prospect also illustrates tensions between the administrative state that allows a coherent system of environmental regulation to exist, and the American polity’s identity as a self-governing democracy where political truth is determined by trial in the “marketplace of ideas” guaranteed by First Amendment freedom of expression.

This “marketplace of ideas” metaphor, of course, was first voiced by Justice Oliver Wendell Holmes in his eloquent dissent in Abrams v. United States :

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

In a later dissent, in Gitlow v. United States, Holmes expressed that his commitment to the results of this free competition in ideas was so strong that should the arguments in favor of a proletarian dictatorship gain majority approval, he must accept that result.

The foundations of the administrative state are in tension with this notion of popular resolution of scientific and economic truths. Administrative agencies are given authority to resolve scientific and technical issues while carrying out broad Congressional mandates, such as the Clean Air Act mandate to regulate air pollutants that “may reasonably be anticipated to endanger public health or welfare.” The basic theory behind this delegation of authority is threefold – 1) that agencies will be staffed by experts better able to resolve technical and scientific issues than Congress; 2) that Congress lacks the resources and attention to engage in the details of regulatory decisionmaking; and 3) that some policy decisions must be at least partially insulated from the political process.

But this delegation of scientific and economic factfinding is always conditional – Congress always retains the power to withdraw the delegation or overrule agency determinations through affirmative legislation.

Is the urgency of climate change a political truth on the order of the choice between socialism and capitalism? Is our commitment to the verdict of the marketplace of ideas in a democracy stronger than our commitment to urgent action to address climate change?

This past weekend, I took a long walk in Colt State Park in Bristol, Rhode Island. The sun was sparkling off the waves on Narragansett Bay and all sorts of people were similarly drawn to the pleasant shore-side landscape. My stroll through the park lifted my spirits and reminded me of the power of such experiences.

One of my favorite parts of my job is working to conserve habitats and get people outdoors to enjoy our parks and nature preserves. And while I believe – and often explain – that the health of the economy is inextricably linked with the health of the environment, the intangible aspects of natural areas never fail to inspire me. Rachel Carson wrote of a “sense of wonder” elicited by observing nature. Yes! When I see the brilliant flash of a scarlet tanager, otters frolicking in the water, or scores of river herring returning upriver, I am thrilled to the core. What gifts to have these creatures in our world! And we still have a lot to learn about the complex natural systems that sustain them.

In his book My Green Manifesto: Down the Charles River in Pursuit of New Environmentalism, David Gessner posits that the current environmental movement is too cerebral, and that there is joy found in nature that people like Rachel Carson understood. He writes, “And the deeper story begins not with a theory but with particular places . . . that particular Homo sapiens fall deeply and strangely in love with. Later, all this becomes laws and rules and books and essays. But it begins well before and well below that. What later becomes words begins with wordlessness.”

I so relate to that connection with a particular place. Think of a spot you love – where you can feel nature around you. For many those places are on the coast, filled with salt, sand and sounds. Mine is the forest by a lake. Wherever it exists, having a natural place in which to revel is often what makes a person support strong environmental laws and care about protecting wild places. Let’s face it: our views are shaped by our experiences.

The connections people find in nature are central to our work. Making sure urbanites have access to safe parks and children have the chance to play outside improves people’s health now and ensures the development of environmental stewards for the future. Grandparents are often influential, guiding younger generations to explore nature. The “rewilding” of rivers that run through our cities and restoration of green corridors bring nature closer, providing children in more neighborhoods the opportunity to observe a hawk soaring above or the shadows of fish darting just below the surface.

Change is inevitable. As seas rise, species compositions change, and intense storms – and generations – come and go, one thing we know is that undeveloped habitats and larger intact systems are healthier, and have a better chance to withstand storms and stressors. Informed by science, we must help the places we love be resilient, and to have a chance to rebound and thrive. This means working to identify, reduce and mitigate harms from inevitable natural and manmade impacts.

Last month, my father John Coit died, after 93 full years. After his death, I felt an urgent need to visit his special place in the foothills of the Adirondacks. I found him there in the ferns, the dark water, and the soft breeze. I found solace in the wordless magic of nature that carries poignant memories and delights the senses. These experiences fuel my drive to protect the environment – for wildlife, for our children and grandchildren, and for something wordless.

In February, I posted about the formation of the Climate Leadership Council and its push for what it calls its “Carbon Dividend” plan. In essence, it’s a gradually increasing carbon tax. The plan would be revenue neutral, with the proceeds being returned to taxpayers. Thus, the name. I loved the idea and I still love it. I particularly love that the tax starts at $40/ton – that’s a serious number.

However, as I noted in February, the founders of the CLC are a who’s who of the old-line GOP establishment – precisely those whom President Trump would generally refer to as “losers”, unless he could spare the time to come up with something more derogatory.

The CLC has now brought on a number of corporate heavyweights, including GM and four of the world’s largest oil and gas companies (BP, ExxonMobil, Shell, and Total), among others. They published their support in a Wall Street Journal ad. In a cheerful bit of optimism, the program is now called “The Consensus Climate Solution.” The ad describes the plan as “Pro-Environment, Pro-Growth, Pro-Jobs, Pro-Competitiveness, Pro-Business and Pro-National Security.” Who could be against it? Here’s a hint. I think that the tag line would work better if phrased as follows:

Seriously, this is no time for cynicism. This is a great plan. A tax starting at $40/ton would have real impact. (The most recent RGGI auction price? $2.53/ton.) As I noted earlier this week, we need smart people of good will and of all political stripes advocating solutions if we’re going to get anywhere.

Trump may call you losers, but, men and woman of the CLC, I salute you!

Environmentalists have long debated the need to address links between population growth and environmental harm. Perennial issues include whether excessive consumption by the rich contributes more to environmental degradation and deserves more attention than population growth in poor countries and the merits of governmental incentives and disincentives to alter birth rates in either direction. Six writers with different perspectives explore these issues in the March/April issue of ELI’s Environmental Forum.

Professor Lucia Silecchia at Catholic University ably presents the case for focusing on poverty reduction and education, citing the warnings of Pope Francis against population control as a simplistic solution. (However, the views of the Catholic hierarchy have not caused the great majority of Catholic women to refrain from use of artificial contraception). None of the population experts joining the ELI debate, including Paul Ehrlich of Stanford and Joe Bish of the Population Media Center, supports coercive measures to reduce birth rates; but they generally agree that at a minimum, a much stronger effort to meet massive unmet needs for family planning education and service is essential to slow the rise in our numbers and make a meaningful difference.

Experts estimate that over 200,000,000 women in developing countries want to avoid pregnancy but are not using modern contraception. Melinda Gates, Co-Chair of the Gates Foundation, reports that during her visits with African women to talk about vaccination programs for children, the women generally speak up for improving access to contraception. Worldwide birthrates have declined from about 5 births per woman to 2.4 from 1960 to 2015 according to World Bank figures. But many developing countries in sub-Saharan Africa remain at near 5. If each of those 200,000, 000 women decided to have two fewer children, the result would be an appreciable reduction in population growth that would measurably increase family living standards and reduce impacts on scarce resources and the warming of the planet.

President Trump’s recent decision to withdraw from the Paris Climate Accord was disappointing but not unexpected. More bad news for people and the environment has been the Trump Administration’s extraordinary set of initiatives to slash access to family planning services internationally and here in the U.S. The Administration has launched a veritable crusade to reduce women’s autonomy, increase family poverty, and derail progress toward lower birth rates compatible with environmental sustainability. The Monday following his inauguration and the Women’s Marches, President Trump announced that he was reinstating the “gag rule” prohibiting federal funding for international family planning programs if they provide counsel, referrals, or do lobbying for abortion services even with their own funds. This rule has been on and off as U.S. Presidents have changed over the years; but Population Action International (PAI), the leading advocate for international family planning support, describes the Trump version as the gag rule on steroids. That is because the old rule applied directly only to family planning programs of about $600 million. Flanked by a lineup of well-heeled white men, the President signed an Executive Order intending to apply the new gag rule to all “global health assistance programs” receiving 15 times more U.S funding than family planning programs alone. The impact according to PAI will be greatly reduced access to birth control services for women in 60 low and middle income countries, especially in Africa.

Women in the United States are now in the cross hairs of the crusade to make access to birth control more difficult and costly. The week before the President announced his intention to exit the Paris agreement, the online news site Vox reported that a regulation had been drafted and sent forward to the Office of Management and Budget to roll back the Affordable Care Act’s mandate that employers include cost-free contraception in their health insurance programs. The Supreme Court’s decision in the Hobby Lobby case to allow a privately held firm to claim a religious exemption, as if it were a church, has not settled the issue of application of the religious exemption. While further litigation and negotiations continue, the Trump Administration is preparing regulatory action to greatly broaden the basis for objections by allowing any employer with religious or “moral convictions” against offering contraceptives without cost to opt out of providing insurance covering them. This little change would be promulgated as an interim final rule entering immediately into effect before any public comment or hearings though it affects 55 million women who have benefited from the requirement.

Advocates for women’s health services such as the Center for Reproductive Rights will challenge the content and process for the rule if it moves forward.

And there is more. The “health care” bill passed by the House of Representatives and celebrated by the President would allow states to seek waivers of required elements of the current Affordable Care Act such as offering prescription drug or maternity benefit among others, a further blow to women’s health programs.

The deep cuts in Medicaid contemplated by the House health bill together with the reduction levels floated in the Administration’s skimpy outline of its budget proposals dealing with other federal benefit programs would further burden access to birth control services by reducing insurance coverage and imposing higher costs on people least able to afford them. In addition to eliminating all funding in support of international family planning programs as well as the UN Population Fund, the budget would slash U.S Medicaid funding that also supports reproductive health care for millions of women.

The continuing campaigns of the anti-abortion and now the anti-contraception factions to limit access to reproductive health care by other people have a grossly disproportionate impact on low income women and families. Women with resources may be inconvenienced by new limitations but will rarely be prevented from obtaining contraceptives or even abortions as before.

Perhaps psychologists or sex therapists can divine why the President and his minions seem so fixated on reducing women’s access to birth control. Whatever their motivations, this is an issue environmental advocates should not ignore. Improving the lives of women and their families and increasing women’s ability to participate in decisions in their communities are the primary goals of advocates for women’s reproductive rights. But the benefits of lower birth rates to reduce pressure on natural resources and to help slow global warming are real and merit strong support.

Given the current political climate in Washington, environmental programs most likely to survive unscathed are those that rely on market principles, especially if they are enacted at the state or local level. Sustainability advocates may want to take a closer look at energy benchmarking programs, which pass both of those tests.

The jurisdictions closest to me, the District of Columbia and its close-in neighbor to the north, Montgomery County, Maryland, have adopted mandatory energy benchmarking programs for many commercial buildings. Other cities with similar programs include Seattle, Philadelphia, Los Angeles, Kansas City and New York City. Many of those jurisdictions began requiring compliance for public buildings, then larger commercial buildings, and finally smaller buildings. In Montgomery County, buildings over 250,000 square feet had to start benchmarking last June; starting June 1, 2017, most buildings over 50,000 square feet must comply. In New York City, buildings larger than 25,000 square feet must benchmark by next May.

Although benchmarking programs vary from jurisdiction to jurisdiction, generally they require building owners to measure and report information on various types of energy and water usage. Some of that information may come from the owner’s own records; in tenanted buildings, landlords may need to obtain the information from tenants. Often the information is input into software such as the EPA’s Energy Star Portfolio Manager Program, which allows for uniform reporting and effective comparison of the data among buildings. That information is made available to the public.

There are several goals of benchmarking. First, it provides owners with information they may not have had, or understood—as one EPA benchmarking website states, you can’t manage what you don’t measure. By making owners focus on their energy costs, and see how those compare to their neighbors’, they should theoretically make efficient management and upgrade decisions. Second, armed with this information, tenants looking to lease space (or buyers looking to purchase commercial properties) are better able to evaluate what their long term energy costs will be, and can make better leasing or purchasing decisions. Nothing like a lousy score to shame a landlord into making an upgrade decision that ideally is both cost effective and green.

While the programs are still young, some data indicate that they are working. (See the reports issued by the Institute for Market Transformation, and the studies cited by them.) Benchmarking seems like a concept that people on both sides of the isle should be able to support.

When President Trump issued his energy-related Executive Order in March directing further review by the EPA Administrator of, among other things, the Clean Power Plan, it signaled the death knell for what was arguably President Obama's centerpiece domestic action on climate change. But while the Order's likely intent to neutralize this and other rules would have appeared to pave the way for a flurry of lawsuits filed by environmental groups and States particularly concerned about global warming, the federal dockets have thus far been somewhat quiet with respect to the Trump Administration's handling of prior climate change-related rulemaking.

A group of 10 states have begun to push back, though, by filing a petition in the Second Circuit. The rule that is requested to be reviewed? It doesn't involve coal-fired power plants. Nor wellpads or compressors. Rather, the petition involves rulemaking aimed at the ominous ... ceiling fan. The rule, enacted by the Department of Energy in January, establishes minimum energy efficiency standards for fans manufactured after January 2020 pursuant to the Energy Policy and Conservation Act. According to the DOE, the rule is projected to reduce carbon dioxide emissions by over 200 million tons and methane emissions by 17 million tons through 2049. Some 12 days after the rule was finalized, DOE delayed the effective date by 60 days with the stated intent of conducting further review and consideration of new regulations, consistent with the Freeze Memo. In March, DOE subsequently pushed back the effective date even further until September, with the basis being that DOE Secretary Rick Perry was, perhaps unsurprisingly, unable to accomplish the review and consideration of the rule within the 60-day timeframe. Additional energy efficiency rulemakings finalized but not published under the Obama Administration currently remain unpublished.

The significance of the lawsuit is not so much about its substantive impact on climate change. After all, the projected GHG reductions under the ceiling fan rule are only a small fraction of those projected as part of the Clean Power Plan, which itself left some wondering whether it could meaningfully affect climate change on a global level. Further, the Clean Power Plan’s vitality was already in question following the Supreme Court’s stay. Rather, the petition carries broader implications for the Trump Administration's apparent strategy of stalling, as opposed to directly revising or withdrawing, environmental rulemaking that it fundamentally opposes. The strategy is not a wholly illogical one, especially considering the possible legal and practical limitations that some commentators have expressed the Administration might initially face if it were forced to provide, on-the-record, a definitive basis for full-fledged withdrawal of notable climate change regulations.

One of the key figures for the petitioners, New York Attorney General Eric Schneiderman, has contended that the DOE's delays violate the Administrative Procedure Act in that they constitute a substantive revision to a final rule without going through proper notice and comment. He is joined by nine other states (California, Connecticut, Illinois, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington) as well as New York City. If the petitioners prevail, it will likely force EPA and other agencies to confront existing rulemaking head-on, and would otherwise challenge the viability of President Trump's energy-related Executive Order, including associated OMB guidance for implementation of the rule review procedures. Further pressure could also come as a result of a challenge to the so-called “2-for-1” Executive Order, which environmental groups have claimed also directs arbitrary repeal of rulemakings. But until then, neither industry nor environmentalists should be surprised if climate change or other significant environmental regulations carried over from the Obama Administration remain in an infinite loop of administrative review.

Addressing environmental issues on a world scale will always be a difficult proposition. The most recent attempt, the Paris Climate Accord, was no exception. Every nation, leader and business had an opinion on what needed to be done. Eventually, enough countries signed on to allow the Paris Agreement to be deemed “in force.”

What was surprising about the discussions leading up to the Agreement was that 81 companies chose to publicly declare they would take action to reduce their emissions. The companies included Wal-Mart, Mars, IKEA, Siemens, Amazon, GE, GM and Best Buy. Not a bad group of supporters. The declarations were, of course, prior to the election and President Trump is now deciding whether the United States is better served being out of the Paris Agreement.

One would think that after the election, there might be some changes in corporate support for the Accord. But not so. Most of the signing companies, and hundreds more, have reaffirmed their commitment to reduce their emissions. Even coal companies have expressed support. In making his decision on Paris, the President might want to consider the viewpoint of those businesses. For example, in a March statement to Bloomberg, representatives of Apple, Amazon, Google and Microsoft said:

We believe that strong, clean energy and climate policies, like the Clean Power Plan, can make renewable energy supplies more robust and address the serious threat of climate change while supporting American competitiveness, innovation and job growth.

A common theme from all of the corporate supporters is to acknowledge that climate change is real and that they want to do something about it for the good of the planet.

I have to say, however, if that’s really what the businesses believe, they aren’t helping their cause by saying it to a President who has very publicly advanced a contrary view. The good news is, these businesses didn’t really mean it. They were just setting out alternative facts. Businesses care about “shareholder value” -- what action will be best for the bottom line. That’s not a shocking concept and it provides a very understandable basis for supporting the Paris Agreement. They just need to be willing to explain it better. I believe this is the letter the companies really meant to send:

Dear President Trump:

Regarding your consideration of withdrawing from the Paris Climate Agreement, please don’t do it. We know you’ve got our best interests at heart, but you’ve done enough. Let us explain.

We sell things—steaks, trucks, drain pipes, wigs, designer clothes. You know, stuff people can’t live without. It’s a whole different world from selling real estate. You get by with a Phase I every once in a while, but we have regulation on everything we do. And it’s been that way for a long time.

The difficulty is that we have discovered two simple truths. First, people (and by that we mean our customers, your voters) actually want environmental regulation. Even now, after all of your great efforts to explain why climate change was invented by the Chinese and late night talk show hosts, Pew Research says that 74% of the people (our customers, your voters) believe that the country should do whatever it takes to protect the environment. We know, that’s made up of 52% Republicans and 90% Democrats, but we did our own research and discovered that we sell coffee and cola and cars to Republicans and Democrats. We’re as shocked as you, but there it is.

Second, and this is really important: Quit changing the rules! We were just getting used to the regulations. We have already taken steps to address future goals, like those in the Paris Agreement. For example, many of us have converted our facilities from coal to gas. We’re not going back.

Don’t get us wrong. We’ll vote for you and we wish you nothing but the best. But Here’s the Thing (sorry, couldn’t resist): we’re going to outlive your time – by a lot. In a few years, you’ll be gone from office. Sooner or later the Democrats are going to be back in power. Sure, they all have really small hands, but what do you think they’re going to do with them? You guessed it – they’re going to change your rules and go back to where we are now. We’ve seen it over and over. And they are going to make up for lost time with 74% of the people (our customers, your voters) saying it’s a great idea.

What we’re trying to say is THIS WHIPSAW REGULATION IS KILLING US!

Only you can make it stop and leaving us in the Paris Agreement would be a great place to start.

We can’t tell you how appreciative we are of your attempts to reconsider some of the regulations for a few years. Really, thank you. But we need to make money and it’s a lot harder to do when we have to keep changing all our procedures and equipment that 74% of the people (you know) said they wanted in the first place.

So, if you could see your way to just switching your focus to getting that really important wall built and put these environmental changes on the back burner, that would be huge . . . believe me.

Earlier this week, the 9th Circuit Court of Appeals rejected challenges to the Federal Implementation Plan EPA promulgated after finding that Arizona’s regional haze State Implementation Plan was inadequate. I think that the result is both correct and unsurprising.

However, one part of the opinion – a recitation of black-letter law – caught my eye. In discussing the standard of review, the court noted that the arbitrary and capricious standard is “highly deferential.” No surprise there. It also noted that courts are particularly deferential when reviewing agency scientific determinations. Also no surprise.

And yet….

What happens if EPA eliminates all of its climate science expertise, and then eliminates the Endangerment Finding? Certainly, a court could still recite the traditional level of deference, but then note that “deference is not abdication” and rule that EPA’s decision must be reversed even under the deferential threshold.

And yet….

What happens if the Trump administration repeatedly makes regulatory decisions based on a “scientific” viewpoint that is so broadly rejected by the scientific community that “scientific” must be put in quotation marks? Might courts at some point conclude that EPA has forfeited the deference normally given to agency scientific decisions?

Make no mistake, theExecutive Order signed by President Trump at EPAyesterday is a big deal. Time will tell whether the Administration’s U-turn on the Obama rules currently in litigation, such as the Clean Power Plan and the rule on fracking on federal lands will make any difference to judicial review of those rules. There are plenty of states and NGOs ready to step into EPA’s and BLM’s shoes to defend those rules.

We already know all this, though. I’d like to focus on a few details concerning the EO that might have gone unnoticed.

The order states that development of domestic natural resources “is essential to ensuring the Nation’s geopolitical security.” I found this statement interesting in light of the recent statements by Secretary of Defense Mattis, who very clearly stated that climate change is real and is itself an important security risk.

The order states that environmental regulations should provide “greater benefit than cost.” I found this statement somewhat odd, given that the President’s prior EO known as the 2-for-1 order, essentially requires agencies to ignore the benefits of regulations and focus solely on the costs that they impose.

Similarly, the Order requires agencies, in “monetizing the value of changes in greenhouse gas emissions resulting from regulations,” ensure that their analyses are consistent withOMB Circular A-4, issued in 2003. The Order states that Circular A-4 embodies “best practices for conducting regulatory cost-benefit analysis.”

I’d be interested in knowing if a single one of the authors or peer reviewers of Circular A-4 have anything nice to say about the 2-for-1 Order?

On March 16th, Reuters reported that President Trump’s administration has proposed a 31 % cut to EPA’s budget, explaining: “Consistent with the President’s America’s First Energy Plan, the budget reorients the EPA’s air program to protect the air we breathe without unduly burdening the American economy.” In this time of change and uncertainty, perhaps more than ever, there is a need for a measured dialog among diverse viewpoints.

With over 130,000 participants attending last year’s Earth Day Texas celebration in Dallas, its organizers decided a Legal Symposium of prominent representatives from environmental organizations, business, academia and the government might help policy makers grapple with fundamental environmental issues such as how best to balance economic development with environmental protection. Several members of the College assisted the organizers in the development of that symposium.

On April 20-21, that Symposium will bring together those thought leaders to discuss: (1) how to integrate science into regulatory decision making; (2) how to reconcile energy and economic development with protection of public health and the environment; (3) how to facilitate environmental dispute resolution; and (4) how to integrate sustainability and ethical considerations into corporate decision-making.

Consistent with the objective of having diverse viewpoints represented, the Thursday evening keynote speaker will be General Wesley K. Clark, discussing Climate Change as a Major Security Concern, and the Friday luncheon keynote speaker will be EPA Administrator Scott Pruitt, discussing the new administration’s objectives and goals. For further information and to register, go to http://earthdaytx.org/legal-symposium/.

For those who support national and international climate change initiatives like the Clean Power Plan and the Paris Agreement, the news out of Washington is gut-wrenching. Disengaging from these initiatives is harmful on geo-political, economic, and moral grounds. Despite these expected actions by the current administration, there is good news in the renewables sector: battery storage technology has the potential to be a strong contender in the fight against climate change.

In October 2015, a leak at the Aliso Canyon gas storage facility outside Los Angeles caused it to shut down. The leak reduced fuel supplies for area power plants. In response, the California Public Utilities Commission (CPUC) mandated mitigation measures, including the expedited procurement of about 100 megawatts (MW) of local energy storage resources in the Southern California Edison (SCE) and San Diego Gas & Electric (SDGE) service territories. Renewable and other types of energy stored during the day would be available when electricity demand increased in the evening, thereby avoiding the need for increased fossil fuel generation to serve that peak need.

The CPUC order directed utilities in Southern California to identify storage projects that could be sited, constructed, and put into operation providing electricity to the grid in only a few months. Within 6 months after the CPUC issued its order, two battery storage facilities were completed. SDGE contracted for the installation of two energy storage projects totaling 37.5 MW. The larger 30 MW project in Escondido is said to be the biggest lithium ion battery storage facility in service on a utility grid in the world and is capable of serving 20,000 customers for four hours. Also, Tesla completed a battery storage facility for SCE at the Mira Loma substation capable of powering about 15,000 homes for four hours.

These California energy storage projects are providing valuable “lessons learned” about the efficiency of battery technology, its benefits and limitations. For example, building on these lessons, New York has established aggressive goals for meeting its electricity needs through renewable sources. New York’s Governor Cuomo established a goal for 50 percent of the state’s electric needs to be met by renewable sources by 2030. The strategy is to transform New York’s electric industry by building a cleaner, more resilient and affordable energy system through investment in clean technologies like solar, wind and energy efficiency. And because wind and solar sources cannot always generate power during times of high electricity demand, energy storage must be a key component of the state’s energy future and more needs to be done for system operators to understand it and to develop the business models that will work.

In October 2016, the New York Department of Public Service issued a Staff Report and Recommendations in the Value of Distributed Energy Resources Proceeding. The goal of the proceeding is to develop accurate pricing for clean distributed energy resources (DERs) that reflects the actual value created by technologies that produce power outside of the utility grid (e.g., fuel cells, microturbines, and photovoltaics) and technologies that produce power or store power (e.g., batteries and flywheels) as well as demand-side measures.

The staff report supports including projects that pair any energy storage technology with an eligible generation facility to receive compensation under a proposed tariff. The report also identifies a utility-driven demonstration project supporting solar-plus-storage. Consolidated Edison Company of New York is currently pursuing a demonstration project that combines multiple solar plus storage systems to improve grid resiliency and provide a dispatchable “virtual power plant” that Con Edison can control and rely on in real time. Con Edison is also pursuing grid-scale energy storage through a request for information seeking to demonstrate how large-scale utility storage can improve company operations, and establish how a singular type of energy storage can offer multiple kinds of value.

Also, at its March 9, 2017 session, New York’s Public Service Commission (PSC) enacted a new compensation structure to value DERs installed in New York. The order establishes compensation values for the first time in New York for energy storage (battery) systems when combined with certain types of DERs. In addition, the PSC directed the state’s utilities to significantly increase the scope and speed of their energy storage endeavors. By the end of 2018, each utility must have deployed and begun operating energy storage projects at no fewer than two separate distribution substations or feeders. The Commission tasked the utilities with striving to perform at least two types of grid functions with the deployed energy resources, for example, increasing hosting capacity and peak load reduction. The Commission stated that these actions are both feasible and necessary to promote timely development of a modern grid capable of managing DERs.

These developments promise good outcomes for the deployment of energy storage, for environmental protection and for consumers. They may also play a role in the planned shutdown (by 2021) of the Indian Point nuclear power facility, that has the capacity to generate more than 2000 MW of electricity and that serves about 25% of the energy needs of New York City and Westchester. At a recent legislative hearing on the Indian Point shutdown, state officials discussed making up for the lost energy by efficiency programs and by encouraging opportunities for renewable, non-polluting sources like solar, wind and hydropower. Their focus on renewables bodes well for further investment in energy storage as a component of reliable service using a resilient distribution system. The battery storage “lessons learned” in Southern California in resolving the gas leak crisis may be valuable to New York State in planning for the shutdown of Indian Point.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.